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AD/CVD update

On May 18th, the ITC released its annual report consisting of a qualitative and quantitative overview of U.S. trade in services; see Recent Trends in U.S. Services Trade, 2015 Annual Report, available at: http://www.usitc.gov/publications/332/pub4526.pdf. The ITC concluded that the United States is the world's largest services market, and was the world’s leading exporter and importer of services in 2013. This year’s report highlights some of the service sectors and geographic markets that contribute substantially to recent services trade performance. The 2015 Annual Report focused on distribution services and includes chapters on three specific industries: logistics services, maritime transport services, and retail services. Each chapter analyzes global market conditions in the industry, examines recent trade performance, and summarizes the industry’s outlook.

On April 23rd, the U.S. International Trade Commission (“ITC”) determined that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of polyethylene terephthalate (PET) resin from Canada, China, India, and Oman that are allegedly sold in the United States at less than fair value and subsidized by the governments of China, India, and Oman. Chairman Broadbent, Vice Chairman Pinkert, and Commissioners Williamson, Johanson, and Schmidtlein voted in the affirmative. Commissioner Kieff did not participate in these investigations. The ITC’s publication is available here. As a result of the Commission’s affirmative determinations, the U.S. Department of Commerce (“Commerce”) will continue to conduct its investigations on imports of this product, with its preliminary countervailing duty (“CVD”) determinations due on or about August 7, 2015; and its preliminary antidumping duty (“AD”) determinations due on or about August 17, 2015 unless extended. Kelley Drye and Warren (Paul Rosenthal, Kathleen Cannon, David Smith, Grace Kim, Brooke Ringel) are representing petitioners DAK Americas LLC, M&G Chemicals and Nan Ya Plastics Corporation, America.

53-Foot Domestic Dry Containers from China

On May 19th, the ITC determined that the establishment of a U.S. industry is not materially retarded by reason of imports of 53-foot domestic dry containers from China that Commerce had determined are subsidized and sold in the United States at less than fair value. Chairman Broadbent, Vice Chairman Pinkert, and Commissioners Williamson, Johanson, and Schmidtlein voted in the negative. Commissioner Kieff did not participate in the final phase of these investigations. As a result of the USITC’s negative determinations, no antidumping or countervailing duty orders will be issued on imports of these products from China.

Welded Line Pipe from Korea and Turkey

On May 15th, Commerce announced its affirmative preliminary determinations in the AD investigations of imports of welded line pipe from the Republic of Korea and the Republic of Turkey. Commerce preliminarily determined that welded line pipe from Korea has been sold in the United States at dumping margins ranging from 2.52 percent to 2.67 percent; and that welded line pipe from Turkey has been sold in the United States at dumping margins ranging from 3.11 percent to 9.85 percent. Due to the full extension, Commerce is scheduled to announce its final determinations on or about September 29, 2015.

Steel Nails from Korea, Malaysia, Oman, Taiwan, and Vietnam

On May 14th, Commerce announced its affirmative final determinations in the AD investigations of imports of certain steel nails from Republic of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam; its affirmative final determination in the CVD investigation of imports of certain steel nails from Vietnam; and its negative final determinations in the CVD investigations of certain steel nails from Korea, Malaysia, Oman, and Taiwan. Commerce determined that imports of certain steel nails from Korea, Malaysia, Oman, Taiwan, and Vietnam have been sold in the United States at dumping margins ranging from 0.00 percent to 11.80 percent, 2.61 percent to 39.35 percent, 9.10 percent, 0.00 percent to 2.24 percent, and 323.99 percent, respectively. Commerce also determined that imports of certain steel nails from Vietnam received countervailable subsidies ranging from 288.56 percent to 313.97 percent. Finally, Commerce determined that imports of certain steel nails from Korea, Malaysia, Oman, and Taiwan, have receivedde minimis countervailable subsidies resulting in final negative determinations that apply to these countries, respectively. As a result of the final affirmative AD determinations for Korea, Malaysia, Oman, Taiwan, and Vietnam, Commerce will instruct U.S. Customs and Border Protection (“CBP”) to collect cash deposits equal to the applicable weighted-average dumping margins. For the affirmative final CVD determination for Vietnam, if the ITC issues an affirmative injury determination, Commerce will order the resumption of the suspension of liquidation and require CBP to collect cash deposits for CVD duties equal to the final subsidy rates. In such a case, the cash deposits for the AD order on Vietnam will be offset by the appropriate amount of export subsidies found in the CVD final determination of 33.59 percent.

Melamine from China and Trinidad & Tobago

On April 14th, Commerce announced its affirmative preliminary determinations in the CVD investigations of imports of melamine from the People’s Republic of China and Trinidad & Tobago. Commerce determined that imports of melamine from China and Trinidad & Tobago received countervailable subsidies ranging from 147.62 to 150.52 percent, and 27.48 percent, respectively. Commerce is scheduled to announce its final determinations on or about August 24, 2015, unless the statutory deadlines are extended.

Sunset Reviews

Saccharin from China

On May 7th, the ITC unanimously determined that revoking the existing AD order on saccharin from China would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. As a result of the Commission’s determination, the existing order on imports of this product from China will be revoked.

Oil Country Tubular Goods from China

On April 28th, the ITC unanimously determined that revoking the existing antidumping and countervailing duty orders on oil country tubular goods from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. As a result of the Commission’s affirmative determinations, the existing orders on imports of this product from China will remain in place for an additional five years.

Polyvinyl Alcohol from China, Japan, and Korea

On April 28th, the ITC determined that revoking the existing AD on polyvinyl alcohol from China and Japan would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. In addition, the Commission determined that revoking the existing AD order on polyvinyl alcohol from Korea would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. All six Commissioners voted in the affirmative with respect to China and Japan, and voted in the negative with respect to Korea. As a result of the Commission’s affirmative determinations, the existing orders on imports of this product from China and Japan will remain in place for an additional five years; and the existing order on imports of this product from Korea will be revoked.

Court Opinions

The U.S. Court of International Trade (“CIT”) and U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) recently issued two opinions in favor of clients represented by Kelley Drye & Warren, with regard to the antidumping duty (“AD”) orders on certain preserved mushrooms and small diameter graphite electrodes from China.

On April 24th, the Federal Circuit affirmed the CIT’s dismissal of U.S. mushroom producer Giorgio Foods Inc.’s claims for payments under the Continued Dumping and Subsidy Offset Act (the “Byrd Amendment”) for antidumping duties collected on mushrooms from China. Under the Byrd Amendment, which was enacted in 2000, the U.S. government is required to pay antidumping and countervailing duties collected directly to “affected domestic producers.” Although the Byrd Amendment was repealed in 2007, controversy remained over the government’s process of selecting the domestic recipients to be paid Byrd Amendment funds from duties on entries prior to the repeal. Giorgio, which was not a petitioner in the investigation, originally sued the Government for its share of the mushroom duty payments in 2003, claiming that the law’s requirements for domestic producers to affirmatively express support for the petitions in order demonstrate eligibility for a payment violated the Due Process clause of the Fourteenth Amendment and the Free Speech clause of the First Amendment of the U.S. Constitution. Had Giorgio’s claims been successful, it could have led to a requirement for other domestic mushroom producers to partially repay past Byrd Amendment distributions in order to fund payments to Giorgio. In its opinion, the Federal Circuit held that the domestic support requirements of the statute were constitutional and that Giorgio’s failure to indicate its support for the AD petitions during the original investigation disqualified it from receiving the Byrd Amendment payouts. The case is Giorgio Foods, Inc. v. United States, case number 13-1304. This was a victory for domestic producer Monterey Mushrooms Inc., which was an original petitioner in the case, and is represented by Michael J. Coursey and R. Alan Luberda of Kelley Drye & Warren.

On May 1st, the CIT dismissed U.S. Importer Ceramark Technology Inc.’s suit over allegations that it circumvented the AD order on small diameter graphite electrodes (“SDGE”) from China. The scope of the order originally covered SDGEs up to 16 inches in diameter and excluded electrodes 18 or more inches in diameter. At petitioners’ request, Commerce later issued an affirmative circumvention determination, finding that 17-inch graphite electrodes constituted a product altered in form or appearance in such minor respects that it should be included within the order’s scope. On appeal, Senior Judge Pogue of the CIT remanded Commerce’s circumvention determination, finding that the agency failed to consider evidence that supports the possibility of an alternative conclusion. On remand, Commerce re-weighed all the record evidence including “previously unconsidered facts” and continued to find that 17-inch graphite electrodes constituted a product altered in form or appearance in such minor respects that it should be included with the scope of the order. Petitioners filed comments on Commerce’s draft remand, but Ceramark did not. As a result, Commerce issued its final remand determination, “finding ‘no reason to alter’ its prior circumvention determination.” Judge Pogue ultimately agreed with the government and Kelley Drye & Warren that Ceramark’s appeal should be dismissed because its failure to file comments to the agency on the draft remand results constituted a failure to exhaust its administrative remedies. Judge Pogue rejected Ceramark’s argument that exhaustion wasn’t required because further comment on the remand determination would have been futile. Specifically, the Judge Pogue stated that “{w}hile Commerce still might not have agreed with Ceramark’s arguments on remand, the ‘mere fact that an adverse decision may have been likely does not excuse a party from a statutory or regulatory requirement that it exhaust administrative remedies.’” The case is Ceramark Tech., Inc. v. United States, case number 13-00357. Petitioners SGL Carbon LLC and Superior Graphite Co. are represented by Skip Hartquist and Alan Luberda of Kelly Drye & Warren.

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